RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX		CASE:  PD-2013-01957
BRANCH OF SERVICE:  Army	 SEPARATION DATE:  20050809

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-5 (Fire Suppression Specialist) medically separated for chronic back pain.  The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty or satisfy physical fitness standards.  He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The back pain condition, characterized as “chronic low back pain” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other conditions were submitted by the MEB.  The Informal PEB adjudicated “chronic back pain, without neurologic abnormality thoracolumbar lumbar range of motion limited by pain, with localized tenderness,” as unfitting, rated 10%, with likely application of Veterans Affairs Schedule for Rating Disabilities (VASRD).  The CI made no appeals and was medically separated.

CI CONTENTION:  He was not evaluated for his hiatal hernia, patellofemoral syndrome, meniscal tear left knee, tinnitus, etc… conditions.  His complete submission is at Exhibit A.”

SCOPE OF REVIEW:  The Board’s scope of review is defined in DoDI 6040.44, Enclosure 3, paragraph 5.e.(2).  It is limited to those conditions determined by the PEB to be unfitting for continued military service and when specifically requested by the CI, those conditions identified by the PEB, but determined to be not unfitting.  Any conditions outside the Board’s defined scope of review and any contention not requested in this application may remain eligible for future consideration by the Board for Correction of Military/Naval Records.  Furthermore, the Board’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections, where appropriate.  The Board’s assessment of the PEB rating determinations is confined to review of medical records and all available evidence for application of the VASRD standards to the unfitting medical condition at the time of separation.  The Board has neither the role nor the authority to compensate for post-separation progression or complications of service-connected conditions.  That role and authority is granted by Congress to the Department of Veterans Affairs, operating under a different set of laws.  The Board gives consideration to VA evidence, particularly within 12 months of separation, but only to the extent that it reasonably reflects the severity of the disability at the time of separation.

RATING COMPARISON:

Service IPEB – Dated 20050726	VA - (3 Mos. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Back Pain, w/o Neurologic Abnormality 
	5299-5237	10%	Lumbar Strain	5237	10%	20051028	
Other x 0  (Not in Scope)	Other x 7 	
Combined:  10%	Combined:  50%	
Derived from VA Rating Decision (VARD) dated 20060106 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:

Low Back Pain Condition.  The narrative summary (NARSUM) notes the CI injured his low back in March 2000 while shaking out a parachute.  Notes in the service treatment record (STR) indicated that the CI’s back symptoms initially resolved after a few weeks of physical therapy (PT).  According to the NARSUM multiple treatment visits for low back pain (LBP) were subsequently documented, including following a motor vehicle accident in November 2003.  A note in the STR on 8 November 2004 indicated that the CI sought treatment for an exacerbation of his back pain while lifting boxes the week before.  He reported back pain without radicular symptoms and was referred for PT.  A therapy evaluation on 9 November 2004 noted that the CI had constant LBP with intermittent left lower extremity (LLE) pain and the exam noted a normal gait and ROM “is within normal limits.”  At an evaluation for a second opinion on 14 March 2005 the CI reported severe LBP that did not radiate and the exam noted a normal spinal contour and “range of motion of the dorsal lumbar spine is somewhat limited in flexion,” with a normal gait and LE strength, sensation, and reflexes.  Computed tomography scan of the lumbar spine on 28 March 2005 was normal.  At a neurological evaluation on 9 May 2005 the CI related that the prior exacerbation of back pain while lifting boxes was accompanied by radiating pain to the LLE with numbing and tingling (N/T), and a month of PT did not improve his symptoms.  Electrodiagnostic (EMG) studies on 9 May 2005 noted minimal evidence of a left L5 radiculopathy and evidence of a mild demyelinating polyneuropathy (unrelated to the back condition).  Magnetic resonance imaging (MRI) on 12 May 2005 noted a moderate midline disc protrusion at L5-S1 without spinal stenosis or encroachment of the neural foramen.  The final neurology note in record dated 12 May 2005 noted that the CI had a low B12 level identified during initial evaluation of the polyneuropathy (B12 deficiency is a possible cause of polyneuropathy).  A prescription for vitamin B12 replacement was provided as well as a recommendation to continue medication for nerve related pain (Neurontin).

At the MEB examination on 20 June 2005, 2 months prior to separation, the CI reported chronic LBP with radiation to the LLE.  The MEB physical exam noted a normal gait with tenderness to palpation of the lumbar spine, with positive straight leg raise (SLR) testing bilaterally left greater than right.  ROM was measured with an inclinometer at T12 and reported as 35 degrees with painful motion noted, with a combined back ROM of greater than 120 degrees.  Strength, sensation, and reflexes of both LE were normal.  At the VA Compensation and Pension (C&P) examination 28 October 2005, 3 months after separation, the CI reported LBP with LLE sciatica.  The CI reported that he could function with medication and that in the past 12 months he had experienced one incapacitating episode of approximately 3 days duration.  The exam noted normal posture and gait, without muscle spasm or complaint of radiating pain with movement.  Thoracolumbar ROM was flexion of 75 degrees (normal 90 degrees), with combined ROM of 200 degrees (normal 240 degrees).  Strength, sensation, and reflexes in both LE were normal and SLR was negative bilaterally.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the low back condition 10%, coded 5299-5237 (analogous to lumbosacral strain) and the VA coded as 5237 and also rated it 10%.  The Board reviewed the evidence at the MEB examination and noted that the examiner measured ROM with use of an inclinometer rather than thoracolumbar ROM with a goniometer, as mandated by the VASRD in effect at the time of separation.  The examiner appears to have measured lumbar ROM (normal 60 degrees), thus the measured 35 degrees equates to loss of thoracolumbar (TL) ROM of 25 degrees, (without evidence in the record of decreased thoracic contribution to TL flexion  The Board’s interpretation of the MEB ROM evidence is supported by the TL ROM measured with a goniometer at the C&P examination 5 months later, which noted TL flexion of 75 degrees and combined TL ROM of 200 degrees, as well as evaluations in the STR, which noted ROM as “within normal limits” and “somewhat limited in flexion.”  Additionally, even as documented, the combined ROM of the back exceeds 120 degrees, the threshold for the 20% rating based on combined TL ROM.  The Board agreed that the ROM evidence in record supports the 10% rating according to VASRD spine rating rules in effect at the time of separation, but does not meet the ROM criteria for the next higher evaluation of 20%.  The Board reviewed to see if there was any other evidence to support the higher evaluation, but there was no muscle spasm or guarding severe enough to result in an abnormal gait or spinal contour documented at either the MEB or C&P exam.  The Board next considered if coding as 5243 (intervertebral disc syndrome) and rating based upon incapacitating episodes resulted in a higher evaluation.  There was no documentation in the STR of incapacitating episodes in the 12 months prior to separation.  At the C&P the CI reported one incapacitating episode of 3 days duration in the last year, which does not meet the threshold for a compensable rating, specified as “incapacitating episodes having a total duration of at least one week…during the past 12 months.”  

After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board concluded that there was insufficient cause to recommend a change in the PEB adjudication for the low back condition.  The Board also considered if there was evidence in the record to support recommending the LE radiculopathy as separately unfitting and eligible for additional disability rating.  Board precedent is that a functional impairment tied to fitness is required to support a recommendation for addition of a peripheral nerve rating at separation.  The CI reported radiation of pain and intermittent N/T of the LLE.  Lumbar MRI did not show evidence of any spinal cord stenosis or nerve encroachment due to a disc protrusion, but the EMG reportedly showed minimal evidence of a left L5 radiculopathy and an unrelated demyelinating polyneuropathy, which was being treated as due to a low vitamin B12 level.  However, all examinations in record documented normal LLE strength, sensation, and reflexes.  The pain component of a radiculopathy is subsumed under the general spine rating as specified in §4.71a and since no evidence of a motor or sensory deficit associated with functional impairment exists in this case, the Board cannot support a recommendation for additional rating based on peripheral nerve impairment.

BOARD FINDINGS:  IAW DoDI 6040.44, provisions of DoD or Military Department regulations or guidelines relied upon by the PEB will not be considered by the Board to the extent they were inconsistent with the VASRD in effect at the time of the adjudication.  The Board did not surmise from the record or PEB ruling in this case that any prerogatives outside the VASRD were exercised.  In the matter of the low back condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  There were no other conditions within the Board’s scope of review for consideration.

RECOMMENDATION:  The Board, therefore, recommends that there be no re-characterization of the CI’s disability and separation determination.

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20131027, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

SAMR-RB						

MEMORANDUM FOR Commander, US Army Physical Disability Agency 
(AHRC-DO), 2900 Crystal Drive, Suite 300, Arlington, VA  22202-3557

SUBJECT:  Department of Defense Physical Disability Board of Review Recommendation for XXXXXXXXXXXXXXXXXXXX, AR20150018465 (PD201301957)

I have reviewed the enclosed Department of Defense Physical Disability Board of Review (DoD PDBR) recommendation and record of proceedings pertaining to the subject individual.  Under the authority of Title 10, United States Code, section 1554a,   I accept the Board’s recommendation and hereby deny the individual’s application.  
This decision is final.  The individual concerned, counsel (if any), and any Members of Congress who have shown interest in this application have been notified of this decision by mail.

 BY ORDER OF THE SECRETARY OF THE ARMY:

Enclosure

CF: 
(  ) DoD PDBR
(  ) DVA